IN THE COURT OF APPEALS OF IOWA

No. 16-2034

Filed January 24, 2018

MARVIN E. KRAUS AND KEVIN W. KRAUS,

as Co-Executors of the ESTATE OF BEVERLY A. KRAUS,

Plaintiffs-Appellees,

vs.

VINCENT MUMMAU,

Defendant-Appellant.

______________________________________________________________

Appeal from the Iowa District Court for Clayton County, Margaret L. 

Lingreen, Judge.

Defendant appeals the district court decision denying his request to set 

aside a civil judgment on the grounds of extrinsic fraud. AFFIRMED.

Matthew M. Sahag of Dickey & Campbell Law Firm, P.L.C., Des Moines, 

for appellant.

Benjamin G. Arato and Robert G. Tully of Law Offices of Rob Tully, P.C., 

West Des Moines, and Mark A. Roeder of Roeder Law Office, Manchester, for 

appellee.

Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.
2

BOWER, Judge.

Vincent Mummau appeals the district court decision denying his request to 

set aside a civil judgment on the grounds of extrinsic fraud. We find Mummau 

has not shown there was extrinsic fraud and the district court did not abuse its 

discretion in denying his petition to vacate the civil judgment under Iowa Rule of 

Civil Procedure 1.1012. We affirm the decision of the district court.

I. Background Facts & Proceedings

Mummau was convicted of sexual abuse in the third degree, in violation of 

Iowa Code section 709.4 (2011), based on an incident which occurred on July 7, 

2011. His conviction was affirmed on appeal.1 See State v. Mummau, No. 12-

1082, 2013 WL 2145994, at *7 (Iowa Ct. App. May 15, 2013).

As part of the criminal case, the victim, Beverly Kraus, who was then 

seventy-three years old, gave a deposition on August 16, 2011. Kraus was 

asked, “Have you ever made any kind of complaints regarding sexual impropriety 

by anybody else?” Kraus stated she had been molested by a relative when she 

was a child. She was then questioned:

Q. Since that time was there ever any other time that you 

made a complaint against anybody about a sexual impropriety? 

A. No.

Q. And that would also go for at work; there was never any 

kind of a sexual harassment claim or anything like that? A. No, not 

from me.

On December 26, 2012, Kraus filed a civil action against Mummau 

seeking damages from him on the grounds of sexual battery and sexual abuse. 

 

1

 Mummau’s petition for postconviction relief from his conviction for third-degree sexual 

abuse was denied by the district court and on appeal. See Mummau v. State, No. 16-

1909, 2017 WL 3535294, at *7 (Iowa Ct. App. Aug. 16, 2017).
3

Kraus’s deposition in the civil action was taken on October 3, 2013. Her attorney 

stated evidence of Kraus’s sexual conduct with persons other than Mummau, the 

person who committed the sexual abuse, was not subject to discovery under 

section 668.15, and instructed Kraus not to answer questions on the issue. 

Mummau’s attorney stated, “[W]e’ll move on and deal with it later.” Kraus was 

asked if she had been the defendant in any civil suits. She was not questioned 

about whether she had been a plaintiff in a civil action or had filed any complaints 

against anyone other than Mummau for sexual improprieties.

The district court determined Mummau’s conviction for third-degree sexual 

abuse was res judicata as to all elements of sexual battery and sexual abuse, 

except for the issue of damages. Mummau waived his right to a jury trial and a 

trial to the court was held in April 2014. On May 8, 2014, the district court found 

Kraus had been diagnosed with chronic post-traumatic stress disorder after the 

incident. The court awarded Kraus $153,750 in compensatory damages and 

$10,000 in punitive damages, for a total of $163,750. Mummau did not appeal 

the district court’s decision.

On April 27, 2015, Mummau filed a petition to vacate the judgment, 

pursuant to rule 1.1012(2) (irregularity or fraud), (5) (unavoidable casualty), and 

(6) (newly discovered evidence). He claimed Kraus’s deposition testimony in 

August 2011 was untruthful because on April 2, 1996, she filed a petition for relief 

from domestic abuse from her boyfriend, Robert Irons, which included allegations 

of physical abuse but also alleged Irons “held me down on the bed to have sex.” 

Based on Kraus’s petition, a temporary protective order was issued. Later, Kraus 
4

filed a motion seeking to have the protective order dismissed. The district court 

entered an order on July 18, 1996, stating the temporary protective order was 

“nullified as of this date.”

Kraus resisted the petition to vacate the judgment. Kraus died on 

June 17, 2015, and her estate was substituted as the plaintiff in this case. After a 

hearing, the district court denied Mummau’s petition to vacate. The court found 

no evidence of irregularity or fraud in obtaining the civil judgment, no evidence of 

unavoidable casualty or misfortune which prevented him from defending the 

action, and there was no newly-discovered material evidence. The court found 

there were no grounds to vacate the civil judgment against Mummau. Mummau 

appealed the decision of the district court.

II. Standard of Review

We review a district court’s decision on a petition to vacate a judgment 

under rule 1.1012 for the correction of errors at law. In re Marriage of Kinnard, 

512 N.W.2d 821, 823 (Iowa Ct. App. 1993). Our supreme court has stated:

The district court enjoys wide discretion in deciding whether 

to vacate an order under rule [1.1012]. We will not reverse the trial 

court’s decision on this question unless an abuse of discretion has 

been shown. We are more reluctant to find an abuse of discretion 

where the judgment has been vacated than when relief has been 

denied.

The court’s exercise of discretion must have some support in 

the record. In examining the record, we give the trial court's 

findings the force of a jury verdict. Consequently, if the trial court's 

factual findings are supported by substantial evidence, they are 

binding on appeal.

In re Adoption of B.J.H., 564 N.W.2d 387, 391 (Iowa 1997) (citations omitted).
5

III. Petition to Vacate

We first note Mummau’s present claims are an improper collateral attack 

on his criminal conviction. “It is well-established that a decree or judgment 

generally cannot be attacked collaterally.” Heishman v. Heishman, 367 N.W.2d 

308, 309 (Iowa Ct. App. 1985). “Any mere error in the judgment is not now 

reviewable. The judgment may be attacked collaterally only if it was entered 

without jurisdiction.” Marshfield Homes, Inc. v. Eichmeier, 176 N.W.2d 850, 851 

(Iowa 1970). Mummau makes no claim the district court did not have jurisdiction 

in the criminal proceedings against him.

On appeal, Mummau claims the civil judgment against him should be 

vacated on the ground of “[i]rregularity or fraud practiced in obtaining it,” under 

rule 1.1012(2). A petition to vacate a judgment under rule 1.1012 must be filed 

within one year after a judgment is entered. Iowa R. Civ. P. 1.1013(1); Bank of 

Am., N.A. v. Schulte, 843 N.W.2d 876, 881 (Iowa 2014). Mummau’s petition was 

filed within the one-year period after the district court entered judgment against 

him for $163,750.

Kraus claims the civil judgment was obtained by extrinsic fraud. Mummau 

states Kraus willfully and intentionally concealed a prior allegation of sexual 

abuse against Irons. He also states her willful concealment prevented a fair 

submission of the issues in the criminal action, and this should have prevented 

the application of the doctrine of res judicata in the civil action. Mummau states if 

he had known Kraus made an allegation of sexual abuse against Irons, obtained 

a protective order, and then later requested to have the protective order
6

dismissed, he would have argued she had made a prior false allegation of sexual 

abuse, which he asserts could have been admissible under the false claim 

exception found in State v. Alberts, 722 N.W.2d 402, 412 (Iowa 2006).

In order to vacate a judgment under rule 1.1012(2), a party must show the 

opposing party engaged in fraud extrinsic to the judgment. See In re Marriage of 

Cutler, 588 N.W.2d 425, 429 (Iowa 1999). “Extrinsic fraud pertains to the 

manner in which the judgment was procured.” Kinnard, 512 N.W.2d at 823. It is 

fraud which is collateral of the matter being tried and “not fraud in a matter on 

which the judgment was rendered.” Cook v. Cook, 146 N.W.2d 273, 276 (Iowa 

1966). “Extrinsic fraud is some act or conduct of the prevailing party which has 

prevented a fair submission of the controversy.” Johnson v. Mitchell, 489 N.W.2d 

411, 415 (Iowa Ct. App. 1992). “It includes the lulling of a party into a false 

sense of security or preventing him from making a defense.” In re Marriage of 

Heneman, 396 N.W.2d 797, 800 (Iowa 1986). “A fraudulent concealment of facts 

which would have caused the judgment not to have been rendered will constitute 

extrinsic fraud.” Bradley v. Bd. of Trs. of Washington Twp., 425 N.W.2d 424, 425 

(Iowa Ct. App. 1988). Extrinsic fraud must be proven by clear and convincing 

evidence. Stearns v. Stearns, 187 N.W.2d 733, 735 (Iowa 1971).

While a judgment may be vacated under rule 1.1012(2) based on extrinsic 

fraud, it cannot be vacated based on intrinsic fraud. Phipps v. Winneshiek Cty., 

593 N.W.2d 143, 146 (Iowa 1999). “[I]ntrinsic fraud inheres in the issues 

submitted to the court.” Id. “Included in the term ‘intrinsic fraud’ are false 

testimony, fraudulent instruments, and any fraudulent matter that was presented 
7

and considered in rendering judgment.” Cook, 146 N.W.2d at 276. “Intrinsic 

fraud ‘occurs within the framework of the actual conduct of the trial and pertains 

to and affects the determination of the issue presented therein. It may be 

accomplished by perjury, or by the use of false or forged instruments, or by 

concealment or misrepresentation of evidence.’” Mauer v. Rohde, 257 N.W.2d 

489, 496 (Iowa 1977) (citation omitted). Thus, “[a] claim of false testimony 

constitutes extrinsic fraud.” Phipps, 593 N.W.2d at 146; see also Adoption of 

B.J.H., 564 N.W.2d at 391 (noting intrinsic fraud includes false testimony).

In her deposition, taken on August 16, 2011, Kraus testified she had never 

made any complaints about sexual improprieties against anyone other than 

Mummau. However, on April 2, 1996, she had filed a petition for relief from 

domestic abuse from her boyfriend, Irons, which included allegations of sexual 

improprieties. Even if we accepted this evidence could possibly be admissible 

under section 668.15, which excludes evidence of a plaintiff’s past sexual 

conduct in a civil action alleging sexual abuse,2 Doe v. New London Cmty. Sch. 

Dist., 848 N.W.2d 347, 354 (Iowa 2014), Kraus’s statement in her deposition 

would constitute intrinsic fraud, rather than extrinsic fraud. False statements 

constitute intrinsic fraud. Phipps, 593 N.W.2d at 146; Adoption of B.J.H., 564 

N.W.2d at 391; Mauer, 257 N.W.2d at 496; Cook, 146 N.W.2d at 276.

Kraus’s statement did not prevent a fair submission of the controversy, lull 

Mummau into a false sense of security, or prevent him from making a defense, 

 

2 Mummau does not present any evidence to support his assertion Kraus’s decision to 

seek dismissal of the temporary protective order against Irons was because her initial 

allegations against Irons were false. Therefore, the allegations against Irons would not 

have been admissible under the false claim exception to the rape-shield law. See 

Alberts, 722 N.W.2d at 412.
8

which are the hallmarks of extrinsic fraud. See Adoption of B.J.H., 564 N.W.2d 

at 391. Because Mummau has not shown there was extrinsic fraud, the district 

court did not abuse its discretion in denying his petition to vacate the civil 

judgment under rule 1.1012. We affirm the decision of the district court.

AFFIRMED.